Judge: Yolanda Orozco, Case: 20STCV05572, Date: 2022-08-02 Tentative Ruling
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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.
Case Number: 20STCV05572 Hearing Date: August 2, 2022 Dept: 31
MOTION
FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION IS GRANTED
Relevant Background
On February
13, 2020, Plaintiff Eric Gonzalez filed the instant action against Defendants
Custom Building Products, LLC; The Sherwin Williams Company; Do It Best Corp.;
PPG Industries; 3M Company; Rust-oleum Corporation; The Gorilla Glue Company,
LLC; Oatey Co.; DAP Products, Inc.; W.M. Barr & Company, Inc.; Western
Pacific Distributing, LLC dba Westpac Materials; Basalite Building Products,
LLC; Sika Corporation; Quikrete International, Inc.; T. Christy Enterprises,
LLC; Crawford Products Company, Inc.; The Dow Chemical Company; Henry Company,
LLC; Masterchem Industries, LLC; Sashco, Inc.; Henkel Corporation; CTS Cement
Manufacturing Corporation; RVC Venture Corp. dba Riverside Cement Co.; Sakrete
of North America, LLC; United States Gypsum Company; Momentive Performance
Materials, LLC; Vogel Paint & Wax Company, Inc. dba Old Masters; Mapei
Corporation; United Gilsonite Laboratories; Valspar Specialty Paints, LLC; Behr
Process Corporation; and Does 1 through 100.
On June 26,
2020, a Notice of Death was filed indicating that on June 17, 2020, Plaintiff
died of injuries which are the subject of this action. On October 1, 2020 the
Court granted Plaintiff’s motion to appoint Erik B. Gonzalez, Jr. and Jennifer
Gonzalez-Ojeda as co-successors-in-interest of Plaintiff and Decedent Eric
Gonzalez (hereinafter “Decedent”).
Plaintiffs’
operative Third Amended Complaint (“TAC”) asserts the following causes of
action:
In this
toxic tort action, the TAC alleges, inter alia, that, in the course of
his business, Decedent worked with and around various hazardous materials and
products that were manufactured by the various Defendants. As to Defendant 3M
Company, the TAC alleges that Decedent was exposed to “3M Bondo Lightweight
Body Filler,” which possess certain toxins.
Defendant
3M Company (“3M”) now moves for summary judgment on the TAC on the ground that
Plaintiffs are unable to show that Decedent was exposed to one of its products
or that the alleged exposure caused Decedent’s injuries. In the alternative, 3M
also seeks summary adjudication on each cause of action raised in the TAC as
well as Plaintiffs’ claim for punitive damages. No opposition has been filed.
Legal Standard
In
reviewing a motion for summary judgment, courts must apply a three-step
analysis: “(1) identify the issues framed by the pleadings; (2) determine whether
the moving party has negated the opponent’s claims; and (3) determine whether
the opposition has demonstrated the existence of a triable, material factual
issue.” (Hinesley v. Oakshade Town Center (2005)
135 Cal.App.4th 289, 294.)
“A party
may move for summary adjudication as to one or more causes of action within an
action, one or more affirmative defenses, one or more claims for damages, or
one or more issues of duty, if that party contends that the cause of action has
no merit or that there is no affirmative defense thereto, or that there is no
merit to an affirmative defense as to any cause of action, or both, or that
there is no merit to a claim for damages . . . or that one or more defendants
either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for
summary adjudication shall be granted only if it completely disposes of a cause
of action, an affirmative defense, a claim for damages, or an issue of duty.”
(Code of Civ. Proc., § 437c, subd. (f)(1).) A motion for
summary adjudication shall proceed in all procedural respects as a motion for
summary judgment. (Code of Civ. Proc., § 437c, subd.
(f)(2).)
“[T]he
initial burden is always on the moving party to make a
prima facia showing that there are no triable issues of material
fact.” (Scalf v. D. B. Log Homes, Inc. (2005)
128 Cal.App.4th 1510, 1519.) A plaintiff moving for summary judgment
or summary adjudication must prove each element of the cause of action.
(Code Civ Proc., §¿437c, subd. (p)(1).) When moving for summary adjudication
of an affirmative defense, a plaintiff has the initial burden to make a prima
facie showing that that the affirmative defense is without merit. (Continental
Ins. Co. v. Columbus Line, Inc. (2003) 107 Cal. App. 4th 1190,
1199-1200.) After the plaintiff meets this burden, the burden shifts to
the defendant to show that a triable issue of material fact exists. (Code
Civ Proc., §¿437c, subd. (p)(1).)
To meet
this burden of showing a cause of action cannot be established, a defendant
must show not only “that the plaintiff does not possess needed
evidence” but also that “the plaintiff cannot reasonably obtain needed
evidence.” (Aguilar, supra, 25 Cal.4th at 854.) It
is insufficient for the defendant to merely point out the absence of evidence.
(Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The
defendant “must also produce evidence that the plaintiff cannot reasonably
obtain evidence to support his or her claim.” (Ibid.)¿The supporting
evidence can be in the form of affidavits, declarations, admissions,
depositions, answers to interrogatories, and matters of which judicial notice
may be taken. (Aguilar, supra, 25 Cal.4th at
855.)
“When
deciding whether to grant summary judgment, the court must consider all of the
evidence set forth in the papers (except evidence to which the court has
sustained an objection), as well as all reasonable inferences that may be drawn
from that evidence, in the light most favorable to the party opposing summary
judgment.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159
Cal.App.4th 463, 467; see also Code Civ. Proc., § 437c, subd. (c).)
Discussion
Defendant
3M contends that it is entitled to summary judgment because there is no
evidence to show either that Decedent was exposed to one of its products or
that one of its products caused Decedent’s injuries. It is noted that each
cause of action is predicated on the exposure to at least one of Defendant 3M’s
products. (UMF Nos. 7-9; Exh. E, TAC a¶ 45; TAC at pg. 8:27-9:8.)
Defendant
3M argues that there is no triable issue of material fact as to whether
Decedent was exposed to one of its products. (Motion at pp. 6-8.)
In a toxic
tort action, the threshold issue “is exposure to the defendant’s product” and
“plaintiff bears the burden of proof on this issue.” (See Rutherford v.
Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 975-976.) In instances where
the plaintiff “cannot make the threshold showing of exposure to a harmful
product, ... we do not get to the next step of determining if the ‘product’ was
a substantial factor” in causing the injury. (Miranda v. Bomel Construction
Co., Inc. (2010) 187 Cal.App.4th 1326, 1339.) The possibility of exposure
does not create a triable issue of fact. (McGonnell
v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1103-1105 [“Does this
possibility create a triable issue of fact? We think not. It is not enough to
produce just some evidence. The evidence must be of sufficient quality to allow
the trier of fact to find the underlying fact in favor of the party opposing
the motion for summary judgment.”])
Defendant
3M presents the following evidence. Decedent’s children found various tools,
materials, products that Decedent stored in his daughter’s garage. (UMF No. 10;
Exh. O, Gonzalez Depo, Vol. 1, at pg. 57:17-58:18; 59:24-60:12) Photos were
taken of the products used, and this included three photos of 3M Bondo Body
Filler. (UMF Nos. 11, 14; Exh. T, Gonzalez Depo, Vol. 2, at pg. 194:9-18;
196:5-10; Exhs. Q-S, Photographs of 3M Bondo Body Filler [Bates Nos. “GON
01701-10703]; Exh. U, Samo Decl. ¶¶ 18-20.)
Plaintiff
Erik Gonzalez speculates that Decedent also used a wrapping tape produced by
Defendant 3M. (UMF No. 15; Exh. T, Gonzalez Depo, Vol. 2, at 233:2-234:3;
234:19-25.) Plaintiffs each testified in their deposition that they were
unaware of the products that Decedent used in his line of work and did not
observe him using any chemical products. (UMF Nos. 16-28; Exh. N:
Gonzalez-Ojeda Depo at pp. 41:23-25, 42:21-24; Exh. O: Gonzalez Depo, Vol. 1,
at pp. 29:19-21, 30:5-8, 33:7-9, 33:10-34:1, 87:21-88:20, 90:18-24, 91:3-5,
97:6-11; Exh. T: Gonzalez Depo, Vol. 2, at pp. 197:15-22, 198:5-21,
238:23-239:2 )
Also, based
on responses to various discovery requests, Plaintiffs were unable to provide
responses or documents evidencing Decedent’s use of Defendant 3M’s products.
(UMF Nos. 33-36; Exh. F: 3M’s Special Interrogatories to Plaintiffs (Set One);
Exh G.: 3M’s Request for Production of Documents to Plaintiffs (Set One); Exh.
H: 3M’s Request for Admissions to Plaintiffs (Set One); Exh. J: Plaintiffs’
response to 3M’s Special Interrogatory Nos. 5, 17; Exh. K: Plaintiffs’ response
to 3M’s Request for Production of Documents No. 15; Exh. L: Plaintiffs’
Response to 3M’s Request for Admission No. 20.)
Based on
this uncontested evidence, the Court finds that Defendant 3M has met its burden
in showing that there is no triable issue of material fact as it relates to
whether Decedent was exposed to one of Defendant 3M’s products. The photographs
of the 3M Bondo Body Filler merely show that Decedent possessed the product,
but it does not show that Decedent purchased this product for his own use.
Furthermore, there is no evidence to show how often Decedent was exposed to
that product, if at all, or how Decedent used that product. Additionally, the
evidence presented does not show beyond mere possibility that Decedent used any
other product manufactured by Defendant 3M. Even when examining the evidence in
the light most favorable to the Plaintiffs, the evidence merely shows that
Decedent was possibly exposed to a product manufactured by Defendant 3M.
However, the possibility of exposure is insufficient to establish a triable
issue of fact. (McGonnell, supra, 98 Cal.App.4th at 1103-1105.)
The burden
now shifts to Plaintiffs to show that a triable issue of fact exists as to
exposure. However, because Plaintiffs have failed to file an opposition, they
are unable to meet their burden.
Therefore,
because the evidence only supports the possibility of exposure, the Court finds
that there is no triable issue of material fact that Decedent was exposed to
Defendant 3M’s product. Consequently, because Plaintiffs have failed to
establish the threshold issue of exposure to the alleged product, it is
unnecessary to determine whether Defendant 3M’s products were a substantial
factor in causing Decedent’s injuries. (Miranda, supra, 187 Cal.App.4th
at 1339.)
Based on
the foregoing, the Court GRANTS Defendant 3M’s motion for summary judgment. In
the interest of judicial efficiency, the Court declines to address the
remaining arguments raised in the instant motion.
Conclusion
Defendant
3M’s unopposed motion for summary judgment is GRANTED. Defendant 3M’s
alterative motion for summary adjudication is DENIED as moot.
Defendant
3M shall give notice.
The
parties are strongly encouraged to attend all scheduled hearings virtually or
by audio. Effective July 20, 2020, all matters will be scheduled virtually
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